wang shengju another vs mohamed said kiluwa suing in the name of kiluwa steel group company ltd 2023 tzhccomd 2 11 january 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL REVIEW CASE NO. 9 OF 2022 WANG SHENGJU …………………………….1ST APPLICANT WANG WENQIAN……………………………2ND APPLICANT VERSUS MOHAMED SAID KILUWA (SUINGIN THE NAME OF KILUWA STEEL GROUP COMPANY LTD) ……………………………... RESPONDENT RULING Last order: 05TH JANUARY 2023 RULING :11TH OF JANUARY 2023 NANGELA, J. On 22nd December 2022, the Applicants herein filed, under a certificate of UTMOST EXTREME URGENCY, an application for review of the orders of this Court (Hon. Mkeha, J) arising from execution proceedings in Commercial Case No.23 of 2022 between the same parties herein. The application was brought under section 78(1) and Order XLII Rule 1(1) (a) of the Civil Procedure Code, Cap.33 R.E 2019, read together with Rule 2(2) of the High Court (Commercial Division) Procedure Rules, 2012. When this matter was called on for orders before this Court on 28th December 2022, Mr. Roman Masumbuko, learned Page 1 of 9 Advocate represented the Applicants while Mr. Alex Balomi and, Mr. Imam Daffa learned advocates, appeared for the Respondent. On that material date, Mr. Masumbuko informed this Court that, he was yet to serve the Respondent’s counsels and, consequently, prayed for time to serve them with the necessary papers. The matter was, therefore, schedule for necessary orders on the 5th of January 2023. On the scheduled date, i.e., the 5th of January 2023, the parties appeared before me represented by the same learned counsels. Mr. Masumbuko prayed for the withdrawal of the notice of urgency on the ground that the urgency of the matter was no longer there. He banked his reasoning on an earlier interim order of this Court issued on the 28 th December 2022 in Misc. Commercial Application No.226 of 2022. In that Misc. Commercial Application No.226 of 2022, which is still pending, the Applicantsare seeking for the uplifting of the prohibitory order of this Court issued on the 13 th day of December 2022. Through an ex-parte prayer, the Applicants had as well prayed for maintenance of status quoante and, this Court, being mindful of the fact that it had already allowed execution of the Decree arising from Commercial Case No.23 of 2022 to proceed, allowed, temporarily,the halting of the process owing to the filing of the application. In its orders, however, this Court was very categorical, that, the status quosought to be maintained was the status quoas it Page 2 of 9 obtained on the material date, i.e., the 28th December 2022 at 9:46 am; and that was solely for the purposes of allowing a smooth disposal of the matters brought under a certificate of urgency before the Court. The matter was, thus, scheduled for hearing on the 5th of January 2023. However, this application could not be heard as scheduled owing to the fact that, the parties filed preliminary objections which are yet to be disposed. As regards the Review application, however, when the parties were now called upon to its hearing on the 5 th of January, 2023, the learned counsel for the Applicants was not ready to proceed with the hearing on the pretext that, the urgency of the matter was no longer there to warrant that this Court hear and determine the matter as scheduled. Instead, he was concerned that, the matter should be re-assigned for its hearing by Hon. Mkeha, J, him being the judge who heard and determined the execution application, whose orders the Applicants seek to review. Mr. Daffa objected to the withdrawal of the certificate of urgency and, further, opposed Mr. Masumbuko’s submission that the matter was no longer under urgency and, that, it must now be assigned to another judge who earlier heard and determined the application for execution. He contended that, there was no a stay order as yet, but that, this Court only maintained the status quo without staying the process. He urged thus Court to proceed Page 3 of 9 scheduling the matter for a hearing having being filed under a certificate of utmost extreme urgency. He contended further that, the prayers and the application as a whole, are meant to unnecessarily delay the lawful execution of the decree. In a brief rejoinder, Mr. Masumbuko rejoined that, under Order XLII Rule 1 of the Civil Procedure Code, Cap.33 R.E 2019, it is Hon. Mkeha who should hear and determine the review application and no other judge of this Court. He, consequently, stood his ground unwavered. Having heard the parties’ submissions, I adjourned the matter and set a date for this ruling. In their submissions, the one and crucial question that needs to be asked is whether this application should be heard by Hon. Mkeha, J., and no other person whomsoever as argued by Mr. Masumbuko. His bulwark was Order XLII Rule 1 of the Civil Procedure Code, Cap.33 R.E 2019. In my view, his submission ought to have been based on Order XLII Rule 5 of the C.P.C. instead of Rule 1. Be that as it may, before embarking on that important issue, there is yet another issue of concern in terms of the prayer to do away with the urgency under which this matter was brought. I think I should start with that. I have posed to ask: what is a certificate of (utmost extreme) urgency all about? In law, a matter is brought under a certificate of urgency to signify to the Court Page 4 of 9 that such a particular case is urgent and must be heard and determined expeditiously. Put differently, an application filed under a certificate of urgency (or “utmost extreme urgency” (as the one at hand)) signifies to the Court that, the same should not follow the normal process because the Applicant therein cannot afford to wait to ask a Court for help. In the South African case of East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd [2011] ZAGPJHC 196, the Court stated the general principles of urgency, and I wish to associate myself with it. The Court stated as follows: “An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the Applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal Page 5 of 9 course laid down by the rules it will not obtain substantial redress. It is important to note that the rules require absence of substantial redress. This is not equivalent to the irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case." See also another case on similar note, the case of Mogalakwena Local Municipality v Provincial Executive Council, Limpopo and Others [2014] ZAGPPHC 400. When the parties appeared before me on the 28th December 2022, I was convinced, based on the submissions by the same learned advocate for the Applicants, that, there was a need to hear the parties urgently and set the records straight in the best interest of each of them. It is worth noting that, on that 28thday of December, 2022, I was faced with two applications by the same Applicants: i.e., Misc. Commercial Application No. 226 of 2022filed under a “Certificate of Urgency”and this Commercial Review No.9 of 2022, filed under a “Certificate of Utmost Extreme Urgency”. Page 6 of 9 However, as I stated hereabove, on the date set for the hearing of the parties in this Review Application, i.e.,the 05th of January 2023, the same advocate, who had filed and certified to this Court that, the matter needs to be heard and be determined under an “utmost extreme urgency”, turnedaround and armed himself with a submission that,“the matter is of no urgency”any longer.His rationale for that submission wassimply based on the orders which temporarily maintained the status quo between the parties in Misc. Commercial Application No.226 of 2022. In my view, I do not think this kind of submission was warranted at the time when the Court had resolutely set in motion its wheels of hearing with a view to dispose of the matter urgently given the context under which it was brought before the Court. In fact, it tends to induce one to cast an eagle’s eye on the motive behind the filing of the two applications in Court. And, indeed, in his submissions, Mr. Daffadid exactly that, lamentingthat, there is a flagrant and insidious move to delay the execution process already being pursued by the Respondent. In essence, and given the certification earlier filed in this Court by Mr. Masumbuko, the same Applicants’ learned advocate to the effect that the matters before the Court are of utmost extreme urgency,and considering his latter submission that the same matter is no longer under such urgency, one may, definitely, tend to agree with Mr. Daffa that, an unacceptable Page 7 of 9 delaying tactic is being played around. Be it as it may, the submission was made and positions made clear. In my humble view, however, if the matters filed in this Court are no longer under urgency, and since the submission comes from the same advocate who filed Misc. Commercial Application No. 226 of 2022claiming that the same was also under urgency, it will logically follow that, since such urgency is no longer there, even the orders which were given in that application, were unnecessary or uncalled for. To that, end, an appropriate order will,consequently, need to be made in the respective case file. As regards the prayer that, the current application be placed before His Lordship Mkeha, J., given that, the Applicants are no longer under urgency as already stated by Mr. Masumbuko, the necessity to abide by what is provided for by the law is vital. I thus see no need why I should address the matter with a sense of urgency as I was earlier made to believe that I should. In view of all that, this Court settles for the following orders: 1. That, this matter being not one befitting a hearing under an utmost extreme urgency state as the Applicant had earlier signified to the Court, and there being a specific prayer from the Applicant’s Advocate that it be treated in an ordinary fashion in due course, the same is hereby Page 8 of 9 shelved from matters filed and in need of special treatment under a certificate of utmost extreme urgency, and will subsequently be dealt with under the ordinary course of things. 2. That, since this review application is not one which should be placed under a state of utmost extreme urgency as earlier signified to the Court, the same is hereby set for necessary orders before Hon. Mkeha J., on 28th February 2023 at 8.30 am. 3. That, the case file in Misc. Commercial Application No.226 of 2022 is to be hereby placed before this Court on this 11th January 2023 for appropriate orders. It is so ordered. DATED AT DAR-ES-SALAAM ON THIS 11TH DAY OF JANUARY 2023 ................................... DEO JOHN NANGELA JUDGE Page 9 of 9